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White House wins fight to keep drone killings of Americans secret

A federal judge issued a 75-page ruling on Wednesday that declares that the US Justice Department does not have a legal obligation to explain the rationale behind killing Americans with targeted drone strikes.

United States District Court Judge Colleen McMahon wrote in her finding this week that the Obama administration was largely in the right by rejecting Freedom of Information Act (FOIA) requests filed by the American Civil Liberties Union and The New York Times for materials pertaining to the use of unmanned aerial vehicles to execute three US citizens abroad in late 2011 [pdf].

Anwar al-Awlaki and Samir Khan, both US nationals with alleged ties to al-Qaeda, were killed on September 30th of that year using drone aircraft; days later, al-Awlaki’s teenage son, Abdulrahman al-Awlaki, was executed in the same manner. Although the Obama administration has remained largely quiet about the killings in the year since, a handful of statements made from senior White House officials, including President Barack Obama himself, have provided some but little insight into the Executive Branch’s insistence that the killings were all justified and constitutionally-sound. Attempts from the ACLU and the Times via FOIA requests to find out more have been unfruitful, though, which spawned a federal lawsuit that has only now been decided in court.

Siding with the defendants in what can easily be considered as cloaked in skepticism, Judge McMahon writes that the Obama White House has been correct in refusing the FOIA requests filed by the plaintiffs.

“There are indeed legitimate reasons, historical and legal, to question the legality of killings unilaterally authorized by the Executive that take place otherwise than on a ‘hot’ field of battle,” McMahon writes in her ruling. Because her decision must only weigh whether or not the Obama administration has been right in rejecting the FOIA requests, though, her ruling cannot take into consideration what sort of questions — be it historical, legal, ethical or moral — are raised by the ongoing practice of using remote-controlled drones to kill insurgents and, in these instances, US citizens.

“The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules — a veritable Catch-22,” she writes. “I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reason for their conclusion a secret.”

Throughout her ruling, Judge McMahon cites speeches from both President Obama and Attorney General Eric Holder in which the al-Awlaki killings are vaguely discussed, but appear to do little more than excuse the administration’s behavior with their own secretive explanations.

“The Constitution’s guarantee of due process is ironclad, and it is essential — but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war — even if that individual happens to be a US citizen,” McMahon quotes Mr. Holder as saying during a March 2012 address at Chicago’s Northwestern University. “Holder did not identify which recent court decisions so held,” the judge replies, “Nor did he explain exactly what process was given to the victims of targeted killings at locations far from ‘hot’ battlefields… ”

And while both Mr. Holder and President Obama have discussed the killings in public, including one appearance by the president on the Tonight Show with Jay Leno, the Justice Department insists that going further by releasing any legal evidence that supports the executions would be detrimental to national security.

While Judge McMahon ends up agreeing with the White House, she does so by making known her own weariness over how the Obama administration has forced the court to rely on their own insistence that information about the attacks simply cannot be discussed.

“As they gathered to draft a Constitution for their newly liberated country, the Founders — fresh from a war of independence from the rule of a King they styled a tyrant — were fearful of concentrating power in the hands of any single person or institution, and most particular in the executive,” McMahon writes.

Responding to the decision on Wednesday, ACLU Deputy Legal Director Jameel Jaffer issued a statement condemning the White House’s just-won ability to relieve itself from any fair and honest explanation as to the justification of Americans.

“This ruling denies the public access to crucial information about the government’s extrajudicial killing of US citizens and also effectively green-lights its practice of making selective and self-serving disclosures,” Jameel writes. “As the judge acknowledges, the targeted killing program raises profound questions about the appropriate limits on government power in our constitutional democracy. The public has a right to know more about the circumstances in which the government believes it can lawfully kill people, including US citizens, who are far from any battlefield and have never been charged with a crime.”

The ACLU says they plan to appeal Judge McMahon’s decision and are currently awaiting news regarding a separate lawsuit filed alongside the Center for Constitutional Rights that directly challenges the constitutionality of the targeted kills.

“The government has argued that case should also be dismissed,” the ACLU notes.

In a Wednesday afternoon statement from the Times, assistant general counsel David McCraw says the paper will appeal the ruling as well.

“We began this litigation because we believed our readers deserved to know more about the US government’s legal position on the use of targeted killings against persons having ties to terrorism, including US citizens,” McCraw says.

Although she ruled against the plaintiffs, Judge McMahon, says McCraw, explained “eloquently … why in a democracy the government should be addressing those questions openly and fully.”

Book Review

WE ALL KNOW about of the fog of war, but the current coverage and commentary on the crisis in Ukraine arguably takes wartime disinformation to new levels.

Richard Sakwa’s new book is a rare and precious exception. It is clear and measured and carefully researched and it shows that the story we are told in the west about events inside Ukraine is deeply flawed.

More generally, it exposes the idea that Russia is the aggressor and the West the protector of Ukraine’s democratic will as a travesty of the truth. In short, Sakwa’s analysis is diametrically opposed to what passes for an explanation of the Ukraine crisis in the mainstream.

One of the book’s great strengths is that it sees the crisis as a product of two connected processes, one domestic, one geopolitical.

Far from being a straightforward expression of popular will, Sakwa details how the government that emerged from the Maidan protests in February 2014 represented the victory of a minority hardline anti-Russian Ukrainian nationalism.

But this minority could come to dominate, he argues, because of the context provided by an aggressive, US-led, Western foreign policy designed to assert Western control over Eastern Europe and, at least in its more hawkish versions, de-stabilise Russia. … continue

Aletho News Exclusive Content

This article will examine some of the connections between the US and UK National Security apparatus and the appearance of the anthropogenic global warming (AGW) theory beginning after the accident at Three Mile Island. … continue

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